OLIVER V. STATE. VOL. 17 The grand jurors, &c., &c., present that Richmond Oliver, on *the 10th day of February, A. [*509 D., 1855, in the county of Scott aforesaid, did, then and there, knowingly and willfully resist Hiram Glover, who was then and there the constable of Washburn Township in the county aforesaid, in the attempt to execute a certain execution issued by Robert N. Smith, an acting justice of the peace, within and for the township and county 508*] *OLIVER aforesaid, in favor of Stephen H. V. Chism against James Hays, against the THE STATE. peace and dignity," &c. The defendant moved to quash the A constable in the execution of civil process, is not restricted to the township in which he resides indictment, and the motion being and it is sufficient in an indictment for resisting overruled, he rested thereon, and refus-process in the hands of a constable, that it state ing to plead further, the court directed that the resistance was made in the county where the plea of not guilty to be entered for he resides. An indictment for resisting an officer in the ex-him. Neither party requiring a jury, ecution of process is sufficient if the charge be the cause was submitted to the court made in the language of the statute (Digest, page sitting as such, and the court found the 359), without stating the manner of resistance. defendant guilty upon the evidence, As to the necessary averments of an indictment descriptive of the offense charged, see the case of assessed his fine at fifty dollars, and Sticker v, The Stale, 13 Arlc, 397. rendered judgment accordingly. The We have no law authorizing the court to sit as a defendant moved in arrest of judg-jury in the trial of a criminal case ( Wilson v. The Mate, 16 ment, which was overruled, and he Ark.; Bond v. State, at the present term). Io an indictment for resisting process, the justice, appealed to this court. who issued the process, is a competent witness to The first objection taken to the in-prove his own official character. dictment is, that it does not charge On the trial of an indictment for resisting pro-that the process was resisted within cess of execution, upon which the officer has made return of "no property found," it is not contra-the township of which Glover was dictory of the return—in the sense in which the constable. truth of &return of an officer is not permitted to be This was not necessary, because a disputed—to prove acts of the defendant preventing constable, it seems, is not restricted to the levy of the execution. The defendant may well prove, in such case, that the limits of his own township in exe-the property upon which the officer attemptea to cuting civil process. See Digest, chap. make the levy, being in his possession, wa g-ths .,,vn, 35, secs. 26, 27, 31, chap. 95, part 2, secs. and not the property of the defendant in the ex-16, 17, 145, 146. ecution. The fourth objection is, that the Appeal from Scott Circuit Court. manner of resictance was not charged. H O.N. FELIX J. BATSON, Circuit This was unnecessary. It is suffi-Judge. cient to charge, in the language of the _Fowler & Stillwell, statute (Digest, chap. 51, part 7, art. 4, for the appellant. sec. 2, page 359), that the defendant re-Jordan, Attorney-General, contra. sisted the officer in the execution of ENGLISH, C. J. Oliver was indicted the proces. The particular mode of rein the circuit court of Scott county, as sistance or obstruction is properly a follows : matter of evidence. U. S. v. Bachel-
JAN. TERM, 1856. OLIVER V. SLATE. der, 2 Gallison Rep. 14 ; McQuid v. The sitting on the mare outside of his yard People, 3 Gilman's Rep. 76.. fence. Chism told him they had come The other objections taken to the into levy on the mare as the property of dictment, are answered by the decision Hays, the defendant in the execution. of this court, in the case of Slicker v. Oliver said the mare was his own prop-Tte State, 13 Ark. Rep. 397; and al-erty, and he would not have her levied though the indictment does not de-upon. Glover then started towards scribe the process alleged to have been the mare, and Oliver took out his resisted, with the particularity pocket knife, holding it down in his 510*] *observed in the English prece-hand without opening either blade, and dents, yet, upon the authority of the told Glover not to come to him, and above case, we must hold it to be sub-that if either he or Chism touched the stantially good. mare, he would cut him. Glover still We have no law authorizing the walked toward the mare, and Oliver court to sit as a jury in the trial of a turned her round and rode inside of his criminal case, as held in Wilson v. The yard, and told a boy to bring him his 43 ate, 16 Ark. Rep. 601, and Bondy. The butcher knife. He got the knife, and State, f at the present term: ar d for this swore he would not have his mare error the judgment must be reversed, taken. Glover told him he would 17-290.1 have him arrested, and he Pending the trial the defendant ex-*then turned the mare and rode [*511 cepted to several decisions made by the off as fast as she could gallop. He was court, and it is perhaps proper that we sitting on the mare all the while, &c. should decide the questions reserved, To this evidence, Oliver objected as as they may arise again upon another incompetent, on the ground that it trial of the cause after it is remanded. was contradictory of the return of the 1. The court permitted Smith, the constable on the execution, of I., Justice of the peace, who issued the ex-property found. ecution charged to have been resisted, There is nothing in this objection: to prove his official character, that he the evidence does not contradict the was such justice, &c., against the ob-return, in the sense in which the truth jection of the defendant. There was of such returns is not permitted to be no error in this. Greenl's Ev., •Qecs. disputed. The constable might, per-83, 92. haps, have returned the particular 2. The State read tue execution in facts: that the plaintiff in the execu-evidence, and the defendant read the tion pointed out a mare in the posses-return of "no property found," en-sion of Oliver, to be levied upon: that dorsed thereon by Glover, the consta-he attempted to do so, but the levy ble. The court then permitted the was resisted by a show of arms, and State to prove by Glover, that, on the thtu by flight—running off the ani-day the execution came to his hands, mal. But the return of no property he went in company with Chism, the found was a short mode of stating the plaintiff in the execution, to the house result of the efforts of the constable to of Oliver, the defendant in the indict-satisfy the execution; and it was hardly ment, for the purpose of levying the necessary for him to detail, in his re-execution upon a mare then in the pos-turn, his unsuccessful adventures in session of Oliver. That, when they search of property, &c. arrived at the hosse, they found Oliver 3. The defendant, Oliver, proposed 1. Airy may be waived in misdemeanors, sec. to prove that the mare, upon which 2184, Mans. Dig. the constable attempted to levy the
VOL. 17 execution, belonged to him, and was not the property of Hays, the defendant in the execution, but the court excluded the evidence. The constable, it seems, found the mare not in the possession of the defendant in the execution, but in the possession, and at the house of Oliver. If she belonged to him, the constable was invading his rights, and a trespasser, in attempting to levy upon her. Elder v. Robinson, 10 Wend. Rep. 128; Mitchell v. The State. 12 Ark. 55; Overby et al. v. McGhee, 15 Ark. Rep. 459. Without intending to decide that Oliver was justifiable in making a flourish of knives to resist a mere levy upon the mare, even if she belonged to him, when the law points out more peaceful remedies, yet we must hold, upon the above authorities, that the court should have permitted him to prove that the mare was his property, and not subject to the execution. Reversed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.